Archive for Criminal Law – Page 2

Penalties Within Criminal Law

As outlined under the Crimes (Sentencing Procedure) Act 1999, New South Wales courts can impose a variety of penalties upon conviction for an offence. These penalties differ in severity, and depend on the specific circumstances of the case and the nature of the offence committed. This article will explore all penalties available to the court in order of increasing severity.


In accordance with section 10 of the Crimes (Sentencing Procedure) Act 1999, without proceeding to conviction, a court that finds an individual guilty of an offence may order that the relevant charge be dismissed without record. This penalty is typically applied in regards to minor criminal and traffic offences. It is, however, important to note that sentencing guidelines may prohibit the imposition of a section 10 dismissal for some offences, such as for high range PCA.

Where the court is satisfied that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, section 10(1)(b) of the Act allows the court to elect to discharge the offender on condition that the person enter into a good behaviour bond for a term not exceeding 2 years. Similarly, the court may also make an order under section 10(1)(c) to discharge the person on the condition that they enter into an agreement to participate in an intervention program.

In deciding whether to make an order for a section 10 dismissal, whether conditional or not, section 10(3) of the Act requires the court to give regard to the following factors:

a) The person’s character, antecedents (i.e. background), age, health and mental condition,
b) The trivial nature of the offence,
c) The extenuating circumstances in which the offence was committed,
d) Any other matter that the court thinks proper to consider.


Under division 4 of the Crimes (Sentencing Procedure) Act 1999, the court may impose a fine as penalty for a convicted offence. Under the act, fines are calculated by reference to ‘penalty units,’ with a penalty unit currently equalling $110.00 under section 17 of the Act.

In determining the amount of any fine to be imposed by a Judge or Magistrate, the court should consider the offender’s financial situation and ability to pay the fine. The maximum time that the court may set to repay the fine is 28 days, however, the registry is likely to grant an extension where the fine cannot be paid within that time.

According to sections 14 and 15 of the Act, the court may impose a fine in conjunction with a good behaviour bond, or as an additional or alternative penalty to imprisonment for indictable offences.

Good Behaviour Bond

In accordance with section 9 of the Crimes (Sentencing Procedure) Act 1999, the court may make an order directing an offender to enter into a good behaviour bond as alternative to a sentence of imprisonment. The term of the good behaviour bond must not exceed five years.

Domestic Violence

Though commonly associated with violence against women, the term ‘domestic violence’ broadly refers to all interpersonal violence which takes place in a domestic setting. In this sense, domestic violence can occur throughout all family relationships, and may appear in a variety of forms such as intimidation, coercion and emotional, physical and financial abuse.

An Apprehended Violence Order (‘AVO’) is often regarded as one of the most effective mechanisms for dealing with crimes of domestic violence. An AVO acts to restrain the behaviour of the defendant, listing certain activities which the defendant is prohibited from doing.

Under Australian law there are two recognised categories of AVO’s. These include:

  • Apprehended Domestic Violence Order (‘ADVO’) – an ADVO is used in circumstances where a domestic relationship exists between the defendant and the applicant.
  • Apprehended Personal Violence Order (‘APVO’) – an APVO is used in circumstances where there is no domestic relationship between the defendant and the applicant.

According to section 36 of the Crimes (Domestic and Personal Violence) Act 2007, every AVO must, without exception, include the following mandatory conditions:

a) An order restricting the defendant from assaulting, molesting, harassing, threatening or otherwise interfering with the protected person or a person with whom the protected person has a domestic relationship,

b) An order restricting the defendant from engaging in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship,

c) An order restricting the defendant from stalking the protected person or a person with whom the protected person has a domestic relationship.

Additionally, section 35 of the Act allows the court to impose further conditions upon the defendant.

These conditions can include:

a) An order prohibiting or restricting approaches by the defendant to the protected person,
b) An order restricting access by the defendant to any or all of the following:

i. to any premises occupied by the protected person from time to time or to any specified premises occupied by the protected person,
ii. to any place where the protected person works from time to time or to any specified place of work of the protected person,
iii. to any specified premises or place frequented by the protected person

c) An order restricting the defendant from approaching the protected person, or any such premises or place, within 12 hours of consuming intoxicating liquor or drugs,
d) An order restricting the defendant from possessing firearms,
e) An order restricting the defendant from destroying or deliberately damaging the protected person’s property.
f) An order prohibiting or restricting specified behaviour by the defendant that might affect the protected person.

An application for an AVO may be made in one of two ways. Firstly, the applicant may attend a local court registry, with or without the assistance of a solicitor, and swear an application for an AVO before the Chamber Magistrate. In addition to this, an application for an AVO may also be made as a consequence of an incident involving the police. Here, the police officer may swear an application for an AVO on behalf of the victim.

HIV man Stuart McDonald jailed for unprotected sex

AUTHORITIES branded HIV-positive man Stuart James McDonald a predator with an uncontrollable sexual appetite.

They claimed he was a delusional, deceitful and manipulative HIV-positive man with narcissistic traits and a heightened sense of entitlement.

After six years of hearings, the Supreme Court yesterday jailed him for almost seven years, with a four-year non-parole period.

They claimed he was a delusional, deceitful and manipulative HIV-positive man with narcissistic traits and a heightened sense of entitlement.

After six years of hearings, the Supreme Court yesterday jailed him for almost seven years, with a four-year non-parole period.

Justice Margaret Nyland ruled McDonald had recklessly, not deliberately, infected his two victims with the chronic illness.

She backdated his minimum term to April 2010 – when he was arrested for allegedly approaching witnesses and attempting to pervert the course of justice.

McDonald, 43, was found guilty by a jury of two counts of endangering life, and acquitted of five other counts.

Justice Nyland directed an eighth count be dismissed.

In sentencing yesterday, she said the case at trial “was always” that he had recklessly infected the men between March and August 2005.

She said the victims “took great care” of their sexual health and had regular testing for infection.

McDonald told both men he did not have the virus – which he was diagnosed in 1998 as having contracted.

Justice Nyland said the first man agreed to have protected sex with McDonald, but noticed the condom being used “had rolled down … in the heat of the moment”.

She said the man continued the sex act, trusting McDonald had told the truth about his health.

Two months later, he tested positive for HIV.

“(The second victim) is more complicated,” Justice Nyland said.

“You offered him a drink, which he thought was scotch and water … and some marijuana.”

The man eventually blacked out and woke up to find McDonald having sex with him.

“He did not have the energy to push you away,” said Justice Nyland.

That man tested positive for HIV in March 2006.

Both victims, Justice Nyland said, had been left “devastated”.

“Although both offences are very serious, I propose to sentence you for (the first offence) on the basis there was a degree of spontaneity about what happened,” she said.

“The (second) situation is more serious … It’s clear you took advantage of him at a time where he was completely unable to do anything to protect his (non-)HIV status.”

She said McDonald had had a difficult life, including an abusive father, learning difficulties and the death of his first boyfriend.

“In custody, you have suffered verbal and physical abuse … you were physically injured … ”

She said the offences deserved an eight-year term, reduced to seven years and 10 months on account of time spent in custody.

McDonald has lodged appeals.

Martin Jaksic pleads not guilty to HIV infection charge as more men make allegations

A man accused of infecting his then partner with HIV failed to tell other sexual partners about his condition, a court has heard.
Martin Peter Jaksic, 28, was arrested on Sunday at Sydney Airport and charged with recklessly inflicting grievous bodily harm.
Mr Jaksic pleaded not guilty on Thursday when he appeared before Sydney’s Central Local Court via video link from jail.

Police opposed his bail application, arguing that Mr Jaksic was at risk of fleeing the country and posed a threat to community safety.
“The defendant has on more than one occasion engaged in sexual conduct without disclosing what is an extremely serious medical condition,” the police prosecutor said.
“There is evidence, I am told, that he has propositioned other people to participate in sexual intercourse without the use of protection.”

The prosecutor said several men had come forward with allegations since hearing in the media about Mr Jaksic’s arrest. He said the offence suggested a “serious breach of trust”.
In 2012, police began investigating a claim that a 33-year-old man contracted HIV from Mr Jaksic.

The prosecution case alleges the 33-year-old was only sleeping with one other man at the time of his infection and that man was not infected. Police will rely on forensic evidence that Mr Jaksic and his alleged victim shared the same strain of HIV.

HIV positive people have a legal obligation to tell sexual partners about their condition even if they are using a condom, according to a NSW Health Department website.
HIV attacks the immune system and is transmitted by bodily fluids such as blood and semen.
Mr Jaksic’s barrister, Hugo Aston, said his client had been HIV positive since December 2010.
“It was my client’s view that the alleged victim was well aware that he had HIV,” Mr Aston told Central Local Court.

Magistrate Greg Grogin found Mr Jaksic posed an “unacceptable risk” to the community but such a risk could be contained by strict bail conditions.
Mr Jaksic is to live with his mother on the NSW south coast, report daily to the local police station, and abide by a curfew. He is forbidden from applying for a passport or entering an international airport.

Mr Jaksic will next appear before Downing Centre Local Court on February 18.

See original Story on Sydney Morning Herald Website.

Sydney siege inquest builds picture of Man Haron Monis

Hugo Aston was recently interviewed for the 7.30 report about dealings with Man Monis, click here to to visit the ABC site to watch the full segment and read a transcript.

Click here to download Man Monis Appeal to the High Court Submission documents.


Michael Pearse: Australian accused of multi-million dollar SMS fraud vows to fight extradition to US

An Australian man wanted by the FBI over a multi-million-dollar text messaging fraud has denied the allegations and vowed to fight any attempts to extradite him to the United States.

Michael Pearse was charged along with another Australian man, Yongchao ‘Kevin’ Liu, over the alleged scam, which centred on billing unsuspecting mobile phone customers for unsolicited text messages on subjects such as horoscopes, celebrity gossip and trivia facts.

Pearse and Liu, both believed to be in Sydney, have been charged with conspiracy to commit wire fraud and mail fraud, which carries a maximum term of 20 years in prison in the United States.

Four men were also arrested in the United States and charged with the same offences, two of which face further charges of conspiracy to commit money laundering.

A lawyer for Pearse, Hugo Aston, told the ABC his client denied “any impropriety” and would vigorously defend the charges.

“As for extradition, if and when that arises we’ll defend that vigorously as well,” Mr Aston said.

According to a deposition from a special agent of the United States Internal Revenue Service (IRS), the alleged fraud generated tens of millions of dollars, some of which one of Pearse and Liu’s co-accused, Lin Miao, “spent freely on travel, parties and expensive accommodations”, including one hotel that charged $15,000 a night.

The deposition — tendered to a New York court — alleged Miao and another man, Yong Jason Lee, worked for a company that offered “premium” text messages, while Pearse and Liu worked for an affiliated company.

The final two men, Michael Pajaczowski and Christopher Goff, worked for a “mobile aggregator”, a company that assembled the monthly charges for premium texts and placed them on the customer’s bill.

US authorities allege Miao and others at the text message company bought enormous quantities of phone numbers from Pajaczowski and Goff.

It is unclear if any were Australian phone numbers, but the deposition alleged members of the syndicate tried to acquire Australian and Canadian phone numbers.

It is claimed the accused then worked with Pearse and Liu to send unsolicited messages to mobile phone customers, which they enrolled in the service indefinitely without their knowledge, a practice known as “auto-subscribing”.

The charge of $US9.99 ($12.85) recurred each month unless customers noticed and challenged it.

The deposition states the men tried to conceal the scam by making it appear as if the customer had given their consent to receiving the messages.

IRS agent William Offord said the crime committed was significant.

“The arrests … highlight the magnitude of this complex e-commerce fraud against unwitting consumers,” Mr Offord said.

“Crimes like ‘auto-subscribing’ undermine the integrity of our economic system.”

The deposition also revealed authorities secretly recorded a phone conversation between Pearse and another alleged co-conspirator, who co-operated with authorities in return for a more lenient sentence.

During the conversation, Pearse allegedly said all the money he received from Miao went to a bank account in Hong Kong, and that he hadn’t touched that money because he was too scared to, saying the money “wasn’t real” and that there would be “come back”.

Pearse also allegedly told the co-conspirator the other Australian, Liu, was his “tech guy”, who “pressed the run button every night”.

It is understood US authorities have not yet requested the extradition of Pearse or Liu.


Original Story:

Understanding Bail in New South Wales

Under Australian law, bail is the legal mechanism where a person who is arrested for a criminal offence can be released pending their trial, rather than being held in custody throughout its entire duration. Once the accused has been arrested and charged with a crime, the police will consider whether it is appropriate to release them on bail, and if so what bail conditions should be imposed. Bail can be obtained from the police after initial arrest, as well as from a Magistrate in the Local Court, a judge in the District Court, or a Justice in the Supreme Court. The purpose of this article is to help inform people unfamiliar with the legal system about the criteria that are taken into account by NSW courts when they are considering bail applications.

The New South Wales Bail System

The regulation of the New South Wales bail system is outlined in the Bail Act 2013 (NSW). In presenting an application for bail, it is first necessary to determine whether the alleged offence is a show cause offence. According to section 16A, a bail authority making a bail decision for a show cause offence must refuse bail unless the accused is able to show cause as to why his or her detention is not justified. Outlined in section 16B of the Act, this requirement generally applies to serious indictable offences that are violent or sexual in nature, or involve the use of a prohibited weapon. However, it should be noted that further show cause offences are outlined within the legislation.

In addition to show cause offences, the Bail Act 2013 (NSW) also operates differently in relation to offences for which there is a right to release as outlined under section 21(2).

According to the Act, the bail authority must make one of three bail decisions in regard to an offence for which there is a right to release. This is either a decision to release the person without bail, to dispense with bail, or to grant bail to the person with or without the imposition of bail conditions.

In circumstances where the alleged offence is not deemed a show cause offence, or where the accused successfully shows that detention is not justified, section 17 of the Act requires the court to consider whether an applicant poses any of four bail concerns, which result in the applicant being declared an unacceptable risk.

Assessing Bail Concerns

As outlined above, section 17 of the Bail Act 2013 (NSW) requires the bail authority to assess any relevant bail concerns. For the purposes of the Act, a bail concern is a concern that, if released from custody, the accused will:

  1. Fail to appear at any proceedings for the offence, or
  2. Commit a serious offence, or
  3. Endanger the safety of victims, individuals or the community, or
  4. Interfere with witnesses or evidence.

It is important to note that the principle criterion applicable to bail applications is not the defendant’s supposed guilt or innocence. While the seriousness of the alleged offences may be taken into account during bail applications, the courts cannot rely on it as the sole determinant of whether bail will be granted.

In assessing whether an applicant presents any bail concerns, section 18 of the Act outlines several matters that may be considered by the bail authority.

A primary consideration of the bail authority is made in reference to the defendant’s history and personal circumstances. In assessing whether the defendant presents any bail concerns, it is common for the bail authority to make reference to:

  • The defendant’s personal background, including their criminal history, circumstances and community ties;
  • Whether the defendant is under the age of 18 years, has an intellectual disability or mental illness, or is an Aborigine or Torres Strait Islander;
  • Whether the defendant has a history of violence or any criminal associations;
  • Any previous failure by the defendant to appear in court pursuant to a bail undertaking;
  • Whether the defendant has a history of compliance or non-compliance with court orders such as bail conditions, apprehended violence orders (‘AVO’), parole orders or good behavior bonds.

The courts will also give consideration to the interests of the defendant, including:

  • The period that the defendant would be obliged to spend in custody if bail were refused, and the conditions of custody;
  • The defendant’s need to be free to prepare for their appearance in court and to obtain legal advice;
  • The defendant’s need to be free for any other lawful purpose;
  • Any bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A of the Act.

The interests of other potentially affected parties may also be taken into consideration by the bail authority when determining whether to grant bail. The court may consider the protection of the victim of the alleged offence, the protection of the victim’s close relatives, or any other person believed to require protection in the circumstances.

The courts will also consider the protection and welfare of the wider community, including:

  • The nature and seriousness of the offence, particularly whether the offence is of a sexual or violent nature or involves an offensive weapon;
  • Whether the defendant has previously failed, or has been arrested for an anticipated failure, to observe a reasonable bail condition.
  • The likelihood the defendant would interfere with evidence, witnesses or jurors.
  • The likelihood the defendant would commit any serious offence while on bail.
  • If it is a serious offence whether, at the time the defendant allegedly committed the offence, the person had already been granted bail or parole for any other serious offences.

Mitigating Bail Concerns

If, upon assessment of the above criteria, the bail authority finds that there are identifiable bail concerns, the bail authority must then determine whether this concern can be mitigated through the imposition of bail conditions. These conditions may be imposed in relation to the defendant’s conduct or place of residence, and may also require a monetary security deposit to be made out to the bail authority.

According to section 20A(2) of the Act, a bail authority may only impose bail conditions if it is satisfied that:

  • The bail condition is reasonable necessary to address a bail concern, and
  • The bail condition is reasonable and proportionate to the offence, and
  • The bail condition is appropriate to the bail concern it seeks to mitigate, and
  • The bail condition is no more onerous than necessary to address the relevant bail concern, and
  • It is reasonable practicable for the accused person to comply with the bail condition, and
  • There are reasonable grounds to believe that the condition is likely to be complied with.

Granting of Bail

According to section 20 of the Bail Act 2013 (NSW), if the bail authority is satisfied upon assessment of the bail concerns that there is no unacceptable risk, or that any risk can be mitigated by the imposition of bail conditions, then the authority must make a decision to either to dispense with bail, or to grant bail to the person with or without the imposition of bail conditions.

Once bail is granted, section 33 of the Act requires the bail authority to, as soon as practicable, ensure the person is given a bail acknowledgment for the decision. A bail acknowledgment is a written notice that requires the defendant to appear before an elected court, on such day and at such time as is specified in a notice given or sent to the person, and also requires that the defendant notify the court before which they are required to appear of any change of residential address.

Bail may be unconditional, or conditions may be attached to it, such as the defendant agreeing to forfeit money if they fail to meet their bail undertakings, reporting to police on a regular basis, or surrendering their passport. It is therefore also necessary that the bail acknowledgement set out the bail conditions (if any), explains the consequences that may follow if the person fails to comply with his or her bail conditions, and must also warn the person that committing an offence while on bail could result in a more severe penalty being imposed.

Refusal of Bail

Under section 19 of the Act, a bail authority must refuse bail where it is satisfied, on the basis of an assessment of bail concerns, that there is an unacceptable risk. According to section 34, a court or authorized justice that refuses or revokes bail must, as soon as practicable, ensure the defendant is given a written notice of refusal setting out the terms of the decision, and any information regarding the review or variation of the decision the regulations require to be provided when bail is refused.

In circumstances where the applicant has been refused bail and wishes to dispute this ruling, a second application to the Local, District or Supreme Court may be made if:

  • The applicant was not represented by a lawyer at the first bail application;
  • The applicant has new information for the court as to why they should receive bail;
  • There has been a change of circumstances; or
  • The applicant is under the age of 18, and the first bail application was made on their first appearance for the offence.

If you have any further questions about how the criteria considered during a bail application would apply to you, or need any further information, please contact us.

Greg was my best mate. Knowing that I killed him … it’s left me with terrible feelings

The thing about the death of Greg Wood at the hands of his best mate, Daniel Gray, is how easy it is to imagine someone you know in the same situation.
Think about the ragged end of a wild bucks’ night in the Sydney central business district. Only two men are left standing after hours of drinking and recreational drug use.
One of the men, Wood, a 33-year-old with a penchant for pushing the limits, has been hassling his mate, Gray, for hours to do something very stupid – to try heroin together for the first time. It’s a couple of days after New Year’s Eve 2009.

Mateship gone wrong: Daniel Gray arrives at court for sentencing. Photo: Ben Rushton
Gray, an honest, thick-set Kiwi now living in Western Australia, refuses for the best part of five hours. But then his resistance fails.

”The biggest mistake of my life was giving in to Greg’s persistent requests to go to Kings Cross and buy heroin, ” Gray says, speaking publicly about what happened for the first time outside the witness box.
After travelling to the city’s red-light district, where Wood buys the drug with ease, the two mates travel back to their cheap hotel and come to the bizarre conclusion that it will be safer if they inject each other.
Wood’s attempt, it seems, is unsuccessful, but Gray is able to tap a vein and sends the heroin home.
Within a couple of hours, it is clear something is wrong – Wood’s lips have begun to turn blue and he has stopped breathing.
Gray tries desperately to revive his mate, attempting CPR and then calling an ambulance, but it is too late. About an hour later, at about 11am, the ambulance officers stop pumping Wood’s chest and take him away.
”Greg was my best mate,” Gray says. ”Knowing that I killed him … it’s left me with terrible feelings … regret, sadness.”
Gray immediately confesses to ambulance officers and police what has happened, telling them: ”It’s my fault … I’ll call his mother and tell her.”
What follows is a protracted legal nightmare.
A coronial inquest into Wood’s death is called and it hears a moving statement in which Wood’s widow Kristen says that her husband was a compulsive risk taker and that she doesn’t want any further action taken against his best mate.
But, as District Court judge Ian McClintock said in sentencing the 39-year-old on Friday, it is the justice system’s job to uphold the law on behalf of the entire community, not just a few individuals. Gray is charged with manslaughter and, some months later, pleads guilty to the charge.
”I cannot express enough to Greg’s family how sorry I am,” Gray says. ”The effects of my mistake have left them without a husband and a father.
”I just want people to know the terrible consequences that can flow … from taking drugs. It will be with me for the rest of my life.”
On Friday, Gray was sentenced to a three-year good behaviour bond, meaning he will not spend a single day in jail over the incident.
McClintock said Gray had taken part in the incident out of a ”misplaced sense of loyalty and mateship” that had ”resulted in a very tragic loss of life”.
”The idea to use and inject the heroin was the victim’s own,” McClintock said. ”It was the deceased who initiated the process of obtaining the heroin … pressing the offender to accompany him to Kings Cross to purchase it.
”He negotiated the purchase and it was he who incited his friend to use it to satisfy his own appetite.
”In light of the very low moral culpability, a sentence of imprisonment would not be appropriate.”
Speaking after the decision, Gray’s lawyer, Hugo Aston, said he believed the good behaviour bond was the right result, but that ”obviously, no one is a winner”.
”When you look at the circumstances of this particular case and these particular facts, quite clearly this man shouldn’t go to jail,” Aston said.
”He just wants to go home, be with his wife and try as best he can to get on with his life.”

See Story as Published in Sydney Morning Herald

Former Wife Confirms Charles Blackman Artworks are Fake

Genevieve de Couvreur, former wife of Charles Blackman, has confirmed that the two paintings recently sold as Charles Blackman paintings for $120,000 were not painted by the 84 year old artist.

“I saw Franki painting them,” Ms de Couvreur said. ”I saw those works in progress.”

Ms De Couvreur declares the Charles may have thought that he painted these, sadly he has been unwell for quite so

Ms de Couvreur accepts that her now 84-year-old former husband may have declared ”I painted that” during one of his two excursions to sign the paintings at the Deutscher and Hackett gallery in Sydney last year, as recounted by the auction house’s executive director, Damian Hackett.

”But look,” she said, ”Charles is sick. He doesn’t have his mental faculties, sadly.”

Barclay Churchill is still looking to discuss this case with the purchasers of these painting’s in this matter, please contact Barclay Churchill on 02 9635 3777

Read more:

Fraudulent Artwork – Charles Blackman

Barclay Churchill has been associated with renowned Australian artists Chris Blackman a Franki Birrell. 6 months ago, it is believed that a unknown buyer has purchased 2 paintings for $120,000 passed off as Blackman’s. Barclay Churchill is urgenly attemping to contact these buyers for assistance in this matter.

Read the full story in this morning’s Sydney Morning Herald here.